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Brandon M., Counselor at Law

Category: Criminal Law

Satisfied Customers: 12485

Experience: Attorney

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Hello i was in a store sat my bag down a child was playing

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Hello i was in a store sat my bag down a child was playing running around with her moms wallet the child put her mom wallet up on my purse i left the store with knowing the wallet was in my purse when i realized i returned the wallet with out anything missing. But i was arrested for TOP 11...WHAT CAN I DO

I should start by saying that because the nuances of every situation are different, this information should not be construed as complete or advice without consulting in person with counsel. That said, there is no crime or code section titled "TOP 11", but "TOP" can sometimes mean "theft of property". Unless you would like to discuss a crime other than theft of property, that is what we will discuss today.

The reason I asked which specific code section you are accused of violating is because it's difficult to understand how you would be charged with theft. Under Alabama Code section 13A-8-2, "Theft of property" only includes four possible scenarios:

A person commits the crime of theft of property if he or she:

(1) Knowingly obtains or exerts unauthorized control over the property of another, with intent to deprive the owner of his or her property;

(2) Knowingly obtains by deception control over the property of another, with intent to deprive the owner of his or her property;

(3) Knowingly obtains or exerts control over property in the custody of a law enforcement agency which was explicitly represented to the person by an agent of the law enforcement agency as being stolen; or

(4) Knowingly obtains or exerts unauthorized control over any donated item left on the property of a charitable organization or in a drop box or trailer, or within 30 feet of a drop box or trailer, belonging to a charitable organization.

Let's ignore #3, because that requires taking control over property in the custody of a law enforcement agency. Let's also ignore #4, because that involves taking a donated item. #2 involves taking by deception, and that doesn't appear to involve the type of scenario you are considering either. That leaves #1.

#1 is when someone "knowingly obtains or exerts unauthorized control over the property of another, with intent to deprive the owner of his or her property." Where the situation is that the suspect has voluntarily returned the "stolen" item, this is difficult to prove--if someone intends to deprive the owner of his or her property, they normally wouldn't return the item! It's that simple--the prosecution can argue that the thief took the item and suddenly had an attack of conscience that led to the return of the item, but that's extremely unlikely in any given case. Since the prosecution has to prove guilt beyond a reasonable doubt, it would take some very special circumstances for the prosecution to even try to prove guilt under those circumstances.

For that reason, it is important to separate between the police and the District Attorney's office. The police are responsible for investigating crimes and referring them to the District Attorney's office for prosecution. However, the District Attorney's office is actually responsible for deciding if there is enough evidence to prove guilt beyond a reasonable doubt, and then trying to prove guilt beyond a reasonable doubt in court. The D.A. will not prosecute charges against a suspect if they believe that they can't prove guilt or if the interests of justice would not be served by prosecuting. In other words, being arrested does not automatically mean that you will be prosecuted. Most police officers do a pretty good job, and they only refer cases to the District Attorney if they have enough evidence to prosecute, but some cases are too close to call, and some just shouldn't be referred to the D.A.'s office in the first place. The police have a pretty easy job because they just have to write everything down and send it to the D.A., but the D.A.'s office is the one that feels the heat for abusing it's discretion and prosecuting weak cases.

You said that you have not been given a court date. Right now, it is very possible that you will never get a court date. If the D.A. decides that it can't prove your guilt beyond a reasonable doubt based on the evidence available, or if they believe that justice wouldn't not be served by prosecuting, you may never get a court date, and it will be as if this never happened. As I mentioned, a thief would not normally return an item, and those actions are usually inconsistent with someone who wants to steal something. It's also possible that you would be given a court date and the whole thing would get dismissed the very first day.

So the first thing that I would do is to not lose any sleep over this. It's entirely possible that this will simply disappear due to a lack of evidence or in the interests of justice.

The second thing that I would do is not discuss this matter with anyone except an attorney--anything you say can be used against you.

Third, if you can afford to meet with an attorney in person, I would also speak with a criminal defense attorney so you can be ready just in case you are called to court.

Fourth and finally, if you can't afford an attorney, AND if you are given a court date, AND if the case is not dismissed when you appear in court, you will be offered a public defender if you can't afford one.